The Law School Difference Between Memos, Briefings, & Briefs
First, a quick disclaimer: This is a suggested guide for a law school memo. In practice, legal memo format vary from firm to firm.
Before drafting a memo, do a quick outline denoting key issue(s) and relevant cases (with cites) that support or weakens the case. Keep in mind that a memo is supposed to take on a neutral tone (as opposed to the advocacy tone attached to a legal brief).
Once you identify the relevant cases, group them together into following:
- Group A: Cases supporting plaintiff’s assertion #1
- Group B: Cases opposing plaintiff’s assertion #1 (and in effect supporting defendant’s contention)
- Group C: Cases supporting plaintiff’s assertion #2 (the “Even if contention #1 fails” argument)
- Group D: Cases opposing plaintiff’s assertion #2 (and in effect supporting defendant’s contention)
Once the cases are grouped, make a decision as to who the Court is likely to favor and explain why. Match the key facts to the prevailing rules of law.
Briefing v. Brief: What’s the Difference?
Do not confuse briefing with a brief. The former is a study method used in law school and the latter is a legal document presented to a court of law.
First year law students are encouraged to “brief” a case, that is, to identify the relevant facts, the legal issue, the rule of law (the holding), the analysis (how the court came to that particular conclusion) and conclusion (is the court siding with the lower court’s decision, reversing the lower court’s decision, or reversing in part and remanding/sending back the case to the lower court?)
The name “briefing” is a misnomer. Often, a professor will spend 15-45 minutes on a case and calling various students to share his/her case briefing with the rest of the class. Briefing is a skill you attain by reading many cases and learning to spot the legal issues and rules. This is particularly challenging because the ease of spotting a rule in a case (a holding) is closely associated with how well the judge writes. Some judges write in a straight-forward manner and organize the opinion in a logical format. Other judges like to meander a bit and inject the opinion with his/her opinion about the policy behind the law.
It may be easier to separate the brief into two aspects: procedural (which court is issuing the opinion, what the lower courts held, and what will happen to the case after the decision made by the issuing court) and the substantive aspect (is the court issuing the opinion changing/making law, upholding precedent, or distinguishing current case from precedent?)
As a first year law student, your goal is to try to figure out the general pattern of an opinion and zero in key words associated with the holding/rules of law. As to whether or not to highlight the brief in different colors, it depends on whether you are a visual learner or not. If coloring does nothing to help you differentiate the sections, then the act of slathering highlighters over printed words merely distract you from focusing on the meaning of the words. From my own experience, I find it easier to simply use a color-coded bracket (or straight line) drawn on the side of the paragraph (to denote which section is the issue, relevant facts, key rules from precedent cases, the holding of the court issuing the opinion, and the procedural posture as well as the final decision. I would circle key words for emphasis when necessary.
[thanks to aj82 and shelley via cc]
The Many Faces of iPad: Fujitsu & STMicro Take on Apple
Apple is in danger of being made subject of a lawsuit by Japan’s Fujitsu and European chipmaker STMicroelectronics, in the wake of Apple’s adoption of the name “iPad” for its latest tablet PC eye candy. “iPad” has been a registered trademark by STMicro since 2000 for its semiconductor technology. For Fujitsu’s part, it is claiming that it created a palmtop computer of the same name, launched internally for use by its shop assistants beginning 2002. At present, Fujitsu has a pending application for the use of the trademark.
There are other companies that hold rights to use “iPad” as a trademark for products under certain categories, including Siemens for engines and motors, and Coconut Grove Pads for padded bras. These trademark infringement issues bring us back to 2007, when Apple introduced the iPhone to the public. This caused Cisco—registered owner of the name—to go to the courts. The matter was later settled when the contenders agreed to own the name jointly, for undisclosed terms.
Asked what STMicro intends to do, its representative said they were studying their options. Fujitsu’s official statement said: “[The company] is aware of Apple’s iPad announcement and the possible infringement on our trademark . . . We are currently discussing our options with our trademark counsel and have no further comment at this time.”
Trademark disputes – especially those that involve brand giants like Apple and Fujitsu or Cisco – are usually not enough to hinder the infringing company from launching the product, or to compel it to rebrand. However, if Apple loses its bid for “iPad” and Fujitsu is allowed to continue its application, or if Apple fails to justify that the two products are not confusingly similar, it will have no recourse but to buy the rights from Fujitsu.
The iPad Comparisons
Fujitsu’s iPad is a gadget that has a 3.5-inch screen, powered by an Intel processor, uses a Microsoft OS, and is Wi-fi and Bluetooth-enabled. Its purpose is to connect shop assistants and managers to sales and stock data. STMicro’s iPad, on the other hand, is less similar. “iPad” is an acronym for “integrated passive and active devices,” referring to the technology that used to manufacture semiconductors. But here’s the caveat: STMicro’s products are used in cars, washing machines, smartphones and mobile phones, among other gadgets. The implication: STMicro’s iPad technology could someday be applied to handheld devices like Apple’s iPad.
Fujitsu’s prior application in the US is dated March 2003. It was suspended after the US Patent and Trademark Office found a prior filing by Mag-Tek for keypads used to enter personal identification numbers. The application was subsequently declared abandoned, but was revived by Fujitsu in June 2009. A month later, Apple sent its proxy to the patent and trademark office of Trinidad & Tobago to register “iPad” and secure a priority date that it can claim when it applies for registration in other parts of the world. In the last quarter of 2009, Apple requested the US PTO for more time to oppose Fujitsu’s application. February 28 is the deadline for Apple to decide if it will contest Fujitsu’s application or not.
In an interview with Bloomberg, Fujitsu’s trademark lawyer, Hanify & King’s Edward Pennington said: “They probably need to talk to us and we haven’t had any direct communications with Apple,” and went on to describe Apple’s position as “awkward”.
Beetenson & Gibbon Acquires Martin & Haigh of Scunthorpe
Grimsby legal force Beetenson & Gibbon has now acquired Martin & Haigh of Scunthorpe.
This is the second solicitors merger in as many months, as this move follows Wilkin Chapman and Grange Wintringham’s announcement three weeks ago.
This move comes as a result of the ambitious expansion plans of Grimsby-based Beetenson & Gibbon following their acquisition of Louth’s Scammell & Braithwaite in 2007.
What this means on a short-term basis is that we’ll be seeing the number of employees in B&G increase to 79, a headcount increase of nearly 60%.
As part of the acquisition, Martin & Haigh of Scunthorpe will now be known as Martin & Haigh with Beetenson & Gibbon.
The New Martin & Haigh
“I am looking forward to working within the new firm in the new venture. It makes us a force to be reckoned with, we are now one of the largest firms in the town, as well as the surrounding area. Both of the firms are very similar from what I have seen, and services are being brought together that will complement each other. It is a great fit.”, says Jo Moorhouse, practice manager at the firm.
Beetenson & Gibbon is a founding member of the Quality Solicitors network (found at QualitySolicitors.com), which is a legal brand located in the United Kingdom that chooses lawyers based on positive ratings from their clients as well as their accreditations and then matches them up to new potential clients.
I went to the Martin & Haigh website (martinandhaigh.co.uk), but it appears to be down with this message: “We’re Sorry! This website is down for maintenance, please check back later.” I checked Google Cache and found this description: “Martin & Haigh is a long-established solicitors practice in Scunthorpe, North Lincolnshire. Our clients are as varied as the range of services we provide.” Perhaps B&G is working on a website revamp to reflect the new branding.
